¶1(dissenting). In July, 3890, the board of public works of Windsor, Out., advertised for proposals for constructing a main sewer and several laterals. Each bid was to be accompanied by a certified check. Complainant, who a-esicles in Detroit, tendered proposals, and accompanied them by two certified checks upon the People's Savings *Bank of Detroit. On August 18, 1$90, the council accepted eomplainanfo bid for three of the lateral sewers. Complainant refused to enter into a contract, claiming that his bid urns for the entire work. The board let the contract to the next lowest bidders, and claims the right to retain the checks, and apply so much of the same as is necessary to make up the difference between the bids. This bill is filed to restrain the defendant bank from paying over any moneys upon the checks, and to enjoin the other defendants, who are members of the board of public works, from negotiating the cheeks, and for a decree that said checks be delivered up to eomplainamt.
¶2It is clear that the action of the council in accepting complainant's bid and ordering a contract on August 38, *3541890, was premature. In a preamble of a by-law adopted by tbe council September 8, 1890, it is recited that—
“It is now necessary to adopt the plans and specifications prepared for the said sewers, and to authorize and order the construction of the said works in conformity therewith."
¶3This recital, with others relating to the same subject-matter, is followed by an enactment adopting the plans and specifications, ordering the constructing of said sewers, and directing the time within which the same should be completed.
¶4It is well settled that an executory contract, to be valid, must be binding upon both parties. At the time when complainant’s bids were accepted, no by-law had been enacted approving or adopting the plans and specifications, ordering the construction of the work, or fixing the time within which the work should be done. In the absence of such by-law, the municipality was not bound, and, if the acceptance of the proposal did not bind the municipality, it did not bind the complainant.
¶5The decree of the court below should be affirmed.